Copyright Act needs update for 21st century

26 September 2018

The imminent release of the government discussion paper on the first review of our Copyright Act in over a decade is so important to our creative sector.

Copyright is hard to understand for most New Zealanders and well, for many of us, just a little boring. That's understandable - but for our writers, artists, musicians and creative businesses it matters a lot.

In fact it keeps many of them awake at night because it's what pays their bills and gives them the right to choose what they do with their work.

That's why the imminent release of the government discussion paper on the first review of our Copyright Act in over a decade is so important to our creative sector.

The review gives us the opportunity to look at copyright in a new light, update our laws for the 21st century, and ensure that our writers and publishers have the commercial certainty they need to tell our stories.

We have a vibrant writing and publishing industry in Aotearoa.

Authors, publishers, booksellers and libraries all play a vital role in telling New Zealand's stories and sharing our knowledge.

The internet is providing new opportunities to share those stories with the world and to support the livelihoods of the nearly 5000 Kiwis who work in our publishing industry.

With the click of a mouse we can now send New Zealand creativity to new markets almost anywhere in the world.

Dunedin writer Vanda Symon, recently did just this. Symon's tale of a female police constable in Mataura, Overkill, was first published here in 2007. It has now been published in the UK and just a few weeks ago was at Number 1 on the UK eBook charts.

Instead of physically touring the UK, Symon is "blog-touring" from Dunedin to engage with her new UK readers. What made all of this possible? Copyright. Without this law, Symon's original work could have been used by anyone, which is just not right.

Our writers and publishers have, over many years, built a solid industry in what is – in world terms – a tiny market.

The industry has achieved this with the certainty and stability provided by a law that has, for the most part, worked. This is not to say that our law is perfect. When it comes to being able to enforce copyright, particularly in the online world, our law really does need to change.

In an industry where the local market is small and the margins are slim, any amount of unpaid use is an issue.

This came to light recently when an overseas-based website began to offer New Zealand authors' books, including five Margaret Mahy titles, for free download. Fortunately UK publishers, with the law that's needed in these situations and the support of the UK government's Intellectual Property Office, were able to have the site removed promptly.

So how do we get New Zealand's copyright system right for our future?

Firstly, it must be fit for purpose to enable the continued growth of all of our existing and emerging creative industries. The review must prioritise changes that support our creative economy and deliver certainty, efficiency, and appropriate legal protection to authors, publishers and others who make creative content.

Then, it must provide access to protected works on a reasonable and certain basis. This is where exceptions come in. These are the sections of the law where the government has decided that certain uses of creative material, for example in our schools and libraries, warrant special treatment. In New Zealand law. This system of exceptions is called "fair dealing".

Overall our existing approach to exceptions is working pretty well although it does need modernising in some areas.

An alternative to fair dealing is the approach taken by the US known as "fair use" which certain offshore tech companies are suggesting New Zealand should move to. In reality, though the fair use approach would be anything but fair for our writers and publishers. It would deliver considerable commercial uncertainty, endless US-style litigation and put at risk the telling of New Zealand's stories.

We often hear advocates for the fair use approach claiming a connection between fair use and innovation. Interesting. This suggests that, because New Zealand doesn't have fair use, we're not a country of innovators, which is simply not true.

A connection between fair use and innovation is tenuous at best and disingenuous at worst. If you hear it during the debate that takes place around the review of our laws, ask yourself "who's looking to benefit?". The answer won't be a creator.

When the new government was formed the creative sector was delighted to see the high priority the Prime Minister and ministers placed on the sector. Their strong support sends a clear message that they know how important it is for New Zealand's stories to be told.

The review of the Copyright Act is an opportunity for them to turn this support into action and deliver updated copyright law which allows our creative businesses to thrive and to choose what they do with their work. We can't wait.

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